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In Maine and Ohio, as well as in Pennsylvania and other states, the degree is required by statute to be specially found. W
In Missouri, by statute, it is only necessary to specify degree where the jury find an offence of minor degree. x
In California, it was once said that a verdict of “guilty" imports a conviction on every material allegation in the indictment, and is therefore a conviction for murder, æl though now, under statute, the degree must be specified. y
It is clear in New York that there can be a conviction for murder in the second degree under an indictment in the first degree, z and such is the law that usually obtains.
$ 1122. 4th. As a general rule, at common law, there can be no conviction for an assault, under an indictment for murder. In what respect this rule has been varied by statute or otherwise, has been discussed elsewhere. a
§ 1123. 5th. When the jury find the homicide is excusable, the practice in this country is not to find so specially, but to acquit. 6
A person may be legally convicted as accessary before the fact of murder in the second degree. d
When a verdict is found against a defendant of “guilty of murder as principal in the second degree,” when he is indicted as the absolute actor and perpetrator of the crime, the verdict is erroneous. e
A verdict in the following words, “ We the jury find from the evidence produced that the prisoner is guilty of the murder of B.," is a general verdict. f
State, 3 Ohio St. 88; Parks v. State, 3 State v. Brannon, 45 Mo. 329.
Wharton on Homicide, 284. 30 Wise. 437; Isbell r. State, 31 Tex. d Jones v. The State, 13 Texas, 138; State v. Verrill, 54 Me. 408 ; 168. State v. Cleveland, 58 Me. 564; State e Washington v. State, 36 Georg. r. Dowd, 19 Conn. 388. Post, $ 3196. 222 (Warner, C. J., 1867). See ante,
10 State v. Cleveland, 58 Me. 564; § 1074. Crimes Act, $ 39; Dick v. State, 3 Ohio St. 89. Ante, $ 928.
That a general verdict of guilty should be taken when there is a variety of counts, stating the mode of death in different ways, is no error. g
f McGuffie v. State, 17 Georgia, 9 State v. Baker, 63 N. Y. 276 498.
Ante, $ 424; post, $ 3176. 158
TAKE OR IMPOSITION AS TO THE
8. RELATIONSHIP, $ 1136. UNITED STATES.
II. IN WHAT CARNAL KNOWLEDGE Rape on the high seas, $ 1124.
CONSISTS, $ 1137. Entering vessel with intent to commit III. IN WHAT WANT OF WILL CONrape, $ 1125.
SISTS, $ 1141. MASSACHUSETTS.
1. ACQUIESCENCE OBTAINED BY FEAR, Rape on female of ten or more, and car
$ 1142. nal knowledge of child under ten,
2. ACQUIESCENCE OBTAINED BY IG$ 1126.
OF ACT, NEW YORK.
§ 1143. Rape on female of ten years or more, or
3. ACQUIESCENCE OBTAINED BY MIScarnal knowledge of child under ten, $ 1127.
PERSON, $ 1144. Rape through stupefaction, $ 1128.
4. ACQUIESCENCE OBTAINED BY ARTIPENNSYLVANIA.
FICIAL STUPEFACTION, $ 1146. Rape and its punishment, $ 1129.
5. PRESUMPTION ACQUIESCENCE Proof of carnal knowledge, $ 1129.
FROM PRIOR UNCHASTITY, $ 1148. Assault, &c., § 1129 b.
IV. PARTY AGGRIEVED AS A WIT. Онio. . Rape upon daughter or sister, $ 1131.
NESS, $ 1149.
1. HER ADMISSIBILITY AND WEIGHT, Rape on woman or female child, or carnal knowledge of female under ten,
2. HOW FAR SHE MAY BE CORROBO$ 1132. Carnal knowledge of insane woman,
RATED BY HER OWN STATEMENTS, $ 1133.
3. How SHE MAY BE IMPEACHED, B. RAPE AT COMMON LAW.
$ 1151. I. DEFENDANT'S COMPETENCY TO COMMIT OFFENCE, $ 1134.'
V. PLEADING, $ 1153. 1. INFANCY, $ 1134.
VI. ASSAULTS WITH INTENT TO 2. IMPOTENCY, $ 1135.
RAVISH, $ 1155.
A. - STATUTES.
$ 1124. Rape on High Seas, fc. $ 1124.]
[See 6th ed. of this work,
[In view of special questions of phraseology, the following statutes are retained in this edition.]
§ 1120. Rape on female of ten or more, and carnal knowledge of child under ten. - Whosoever ravishes and carnally knows a female of the age of ten years or more by force and against her will, or unlawfully and carnally knows and abuses a female child under the age of ten years, shall be punished by imprisonment in the state prison for any term of years or for life. a (Stat. 1871, chap. 55.) NEW YORK.
§ 1127. Rape on female of ten years or more, or carnal knowledge of child under ten. Every person who shall be convicted of rape, either, 1. By carnally and unlawfully knowing any female child under the age of ten years; or, 2. By forcibly ravishing any woman of the age of ten years or upwards, shall be punished by imprisonment in a state prison, not less than ten years. (2 R. S. 663, sect. 22.)
$ 1128. Rape through stupefaction. — Every person who shall have carnal knowledge of any woman above the age of ten years, without her consent, by administering to her any substance or liquid, which shall produce such stupor, or such imbecility of mind or weakness of body as to prevent effectual resistance, shall, upon conviction, be punished by imprisonment in a state prison, not exceeding five years. (Ibid. sect. 23. See post, $ 1180-1-2, 1191.) al PENNSYLVANIA.
§ 1129. Rape and carnal knowledge of female children. — If any person shall have unlawful carnal knowledge of a woman, forcibly and against her will, or who, being of the age of fourteen years and upwards, shall unlawfully and carnally know and abuse any woman child under the age of ten years, with or without her consent, such person shall be adjudged guilty of felonious rape, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding fifteen years. (Rev. Act, Bill I. sect. 91.) § 1129 a. Proof of carnal knowledge.
a Under Stat. 1784, c. 66, s. 11, fatally defective, by reason of omitand Stat. 1805, c. 97, one indicted for ting the words “she then and there rape might be found guilty of an as- being," or other like words, after the sault with intent to commit a rape. first mention of the name of the child; Com. v. Cooper, 15 Mass. 187. Un- nor by omitting to repeat her age der the Rev. Stat. ch. 137, sect. 11, after the second mention of her name. he may be found guilty of an assault Commonwealth v. Sullivan, 6 Gray, and battery. Com. v. Drum, 19 Pick. Mass. 477. 497. Under the same provision, Under the Stat. of 1852, c. 250, where one was indicted for rape upon $ 2, by which rape of any female of his own daughter, and the jury found the age of ten years or more, or abuse the criminal connection, but negatived of any woman child under the age of the force and violence, he was sen- ten years, is an indictment prohibited, tenced for incest. Com. v. Goodhue, is sufficient without stating the age of 2 Metcalf, 193. An indictment for the female. Com. v. Sugland, 4 the abuse of a female child, which Gray, Mass. 7. See Com. v. Burke, avers that the defendant, at a certain post, $ 1141, 1146. time and place, did assault “one B. al See People v. Quin, 50 Barbour, C., a female child under the age of 128; Walter v. People, 50 Barbour, ten years,” an'l “her, the said B. C. 144. then and there" did abuse, is not
It shall not be necessary, in any case of rape, sodomy, or carnal abuse of a female child, under the
age of ten years, to prove the actual emission of seed, in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only. (Ibid. sect. 92.)
$ 1129 b. Assault with intent to commit rape. (See sect. 93.) Онго. .
$ 1131. Rape upon daughter or sister. — If any person shall have carnal knowledge of his daughter or sister, forcibly and against her
person to offending shall be deemed guilty of a rape, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor during life. (Act of March 7, 1835, sect. 4;
Swan's Stat. 269.)
person, of the
$ 1132. Rape on woman or female child, or carnal knowledge of female under fên.
- If any person shall have carnal knowledge of any other woman, or female child, than his daughter or sister ch as aforesaid, forcibly and against her will, d
of seventeen years and upwards, shall carnally know and abuse any female child, under the age of ten years, with her consent; every person so offending shall be deemed guilty of a rape, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than twenty, nor less than three years. (Ibid. sect. 5.) $ 1133. Carnal knowledge of insane woman. —
If any male person, seventeen years old and upwards, shall have carnal knowledge of any Woman, other than his wife, such woman being insane, he knowing her See Howard v. State, 11 Ohio tion for rape, the declarations made
by the injured female as to the transd The law presumes that an infant action, immediately after the offence under the age of fourteen years is in
was committed, may be given in evicapable of committing
or attempting dence to sustain her testimony given to commit the crime of rape ; but in court, but not as substantive testithis presumption may be rebutted by mony to prove the commission of the proof that such person has arrived offence. Johnson v. State, 17 Ohio, at the age of puberty. Williams v. 593. See, also, Laughlin v. State, 18 State, 14 Ohio, 222.' In a prosecu- Ohio, 99.
St. R. 328.
VOL. II. -11